STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES

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1 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES AND MOBILE HOMES IN RE: PETITION FOR ARBITRATION SOUTHMONT COVE AT LEXINGTON CONDOMINIUM ASSOCIATION, INC., Petitioner, v. Case No RONALD E. MCQUAIDE, Respondent. / SUMMARY FINAL ORDER Procedural History On April 4, 2011, Southmont Cove at Lexington Condominium Association, Inc. (the Association) filed a Motion for Emergency Relief accompanied by a Petition for Mandatory Non-Binding Arbitration naming Ronald E. McQuaide as Respondent. The Motion and Petition both allege a fire occurred in Respondent s unit in December 2010, and based upon a letter dated February 1, 2011, from the local fire department, the unkempt condition of Respondent s unit could create a greater fire hazard to Respondent s unit and to other units in the building. The Association further alleges that an inspection of the unit by the Association s director of operations on February 11, 2011 confirmed, the Unit was still in a hazardous state due to the excessive piles of paper, garbage and other flammable materials present throughout the Unit. On April 11, 2011, an Order Requiring Answer and an Order Requiring Service were entered. On April 25, 2011, the Association filed a return of service. 1

2 On May 3, 2011, a Default was entered against Respondent. On May 7, 2011, counsel for Respondent filed a letter indicating counsel recently had been retained. The letter was accompanied by a motion styled, Motion to Dismiss and or Strike the Petition for Mandatory Non-binding Arbitration and Petitioner s Motion of Emergency Relief or in the Alternative Motion to File an Answer Out of Time. On May 12, 2011, an Order Setting Case Management Conference and Requiring Supplemental Information was entered. Based upon information contained in Respondent s May 7, 2011 Motion, the Order required the Association to file, on or before May 18, 2011, supplemental information, i.e., a copy of the Complaint filed by the Association against Respondent in state court in Lee County, Florida. The Association complied on May 16, The Case Management Conference was held on May 20, Counsel for each party was in attendance. On May 25, 2011, an Order After Case Management Conference was entered. The Order: vacated the Default; denied Respondent s Motion to Dismiss or Strike; denied the Association s Motion for Emergency Relief; and required Respondent to file an Answer on or before June 7, On May 27, 2011, the Association filed a motion styled Renewed Motion for Emergency Relief (Based on Recent Events). On June 2, 2011, Respondent filed the following: a Motion to Dismiss and or Strike the Renewed Motion for Emergency Relief; a Motion for Mediation; and Respondent s Response / Answer to Petitioner Association s Petition for Non-Binding Arbitration. On June 7, 2011, an Order Setting Second Case Management Conference and Requiring Supplemental Information from Respondent was entered. The Case 2

3 Management Conference was held on June 10, 2011, and Respondent filed the required supplemental information, i.e. the Answer, Affirmative Defenses and Reply to Affirmative Defenses to the Association s pending case against Respondent in state court in Lee County, Florida. Counsel for each party was in attendance. Statement of Issue The issue in this case is whether Respondent is keeping his unit in such a manner so as to create a hazard to the condominium. Findings of Fact 1. Southmont Cove at Lexington Condominium Association, Inc. is the corporate entity responsible for the operation of Southmont Cove at Lexington Condominium No Respondent is the owner of Unit 203 in Building A fire report of the Iona McGregor Fire District in Fort Myers, Florida (Fire District) was attached to the Petition. According to the fire report, the Fire District responded to a fire in Respondent s unit at approximately 11:00 p.m. on December 26, The Fire District s report indicates ignition occurred in the bedroom, the heat source was a cigarette and items ignited were magazine, newspaper and cardboard. 4. In a letter dated February 1, 2011, from the Fire District Division Chief / Fire Marshall to counsel for the Association in response to an , the Division Chief states the following, in pertinent part, My concern is that the condition in which the Unit remains not only increases the potential for future incidents to the Unit, but also could affect the other units in the building should another fire emergency occur. 3

4 5. On February 11, 2011, the Association s Director of Operations conducted an inspection of Respondent s unit and took pictures of the interior of the unit. Two of the pictures were attached as an exhibit to the Petition. One picture shows a couch which appears to be several feet from the walls with the area from the couch to the walls filled with cardboard boxes, both broken down flat and apparently filled, a wooden picture frame and various items wrapped in plastic. The second picture shows a bed and the surrounding floor covered with numerous dirty dishes, paper, cardboard and wrappers made of various materials. 6. At the Case Management Conference held on June 10, 2011, counsel for Respondent, when asked by the arbitrator, did not dispute the authenticity of the pictures taken on February 11, Respondent has not cleaned his unit or permitted his unit to be cleaned. 8. Respondent alleges in the Answer and Affirmative Defenses to the Petition in the instant arbitration case that the arbitrator is without jurisdiction to decide the arbitration case because the Association has a case against Respondent pending in state court in Lee County, Florida, Case No. 11-CC The only issue in the state court case is Respondent s alleged failure to pay condominium assessments. Respondent s Answer and Affirmative Defenses in the state court proceeding make no mention of the instant arbitration proceeding and do not allege the arbitrator is without jurisdiction to decide this arbitration case. Conclusions of Law The Association is an association within the meaning of Section , Florida Statutes. Pursuant to Section , Florida Statutes, the undersigned has jurisdiction 4

5 over the parties to, and the subject matter of, this dispute, irrespective of the Association s pending state court case against Respondent. If no disputed issues of material fact exist, the arbitrator may enter a summary final order. Fla. Admin. Code R. 61B Section (3), Florida Statutes, provides, (3) A unit owner shall not do anything within his or her unit or on the common elements which would adversely affect the safety or soundness of the common elements or any portion of the association property or condominium property which is to be maintained by the association. In pertinent part, the Declaration of Condominium (Declaration) at Article 18, section 18.7, provides, No... hazardous... use shall be made of the Condominium Property or any part thereof. In pertinent part, the Association seeks the following as relief, 1. Restore the Unit to a reasonably clean state so as to eliminate the existing fire hazard within ten (10) days of Order from the Division; 2. In the event McQuaide does not comply with all or part of the Division s Order, authorize SOUTHMONT, without further notice, to hire and clean the Unit and restore same to a reasonably clean condition at the Unit Owner s expense. In addition, authorize SOUTHMONT to inspect the Unit every forty-five (45) days to ensure that the Unit remains in a reasonably clean condition and authorize SOUTHMONT to clean the Unit on an ongoing basis at the expense of the Owner; 3. Any inspection is authorized to be made by a designated representative of SOUTHMONT and/or an agent of a local fire department official and/or any other local governmental health or safety official; and It is clear from the pictures that Respondent s unit must be cleaned thoroughly to eliminate the fire hazard and unsanitary conditions. If Respondent does not clean his unit, the Association seeks authorization to clean the unit at Respondent s expense and to periodically inspect Respondent s unit and have it cleaned if Respondent does not keep it clean. Arbitration cases have permitted such relief. See Colony Pointe 6 Condo. Ass n, Inc. v. Kaplan, Arb. Case No. 5

6 , Final Order (June 24, 1998) (Respondent ordered to hire cleaning service to clean once a month for period of two years, and if not done, Association authorized to contract for such service or have its agents do the work, and in either event, bill Respondent; Association authorized to conduct bi-weekly inspection of unit during ordinary business hours for a period of two years). If Respondent does not clean his unit or have it cleaned, then the Association must have access to the unit. Section (5), Florida Statutes, provides, RIGHT OF ACCESS TO UNITS.--The association has the irrevocable right of access to each unit during reasonable hours, when necessary for the maintenance, repair, or replacement of any common elements or of any portion of a unit to be maintained by the association pursuant to the declaration or as necessary to prevent damage to the common elements or to a unit or units. (emphasis added). The right of access granted by this section is broad enough to support a requirement that unit owners must provide keys to their unit to the Association. Costa Del Sol Condo. Ass n, Inc. v. Morrell, Arb Case No , Summary Final Order (October 14, 2002) citing Emerald Seas Condo. Ass n, Inc., et al. v. Harvan, et al., Arb Case Nos and , Summary Final Order (July 31, 1997). At Article 11, section 11.1(a), the Declaration contains a right of access provision similar to the statutory provision. Arbitration cases have rejected numerous defenses, including whether the Association will or will not access the unit in a manner satisfactory to the unit owner. See Valencia Condominium Residences Ass n, Inc. v. Banoub, Arb. Case No , Summary Final Order (April 17, 2000); Park Lake Towers Condo. Ass n, Inc. v. Palfrey, Arb. Case No , Summary Final Order (November 13, 2000); Helen Mar Condo. Ass n, Inc. v. Marshall, Arb. Case No , Final Order (September 22, 1998); 6

7 Swisher v. Building Three of Country Club Apts. at Bonaventure 32 Condo. Ass n, Inc., Arb. Case No , Final Order (August 31, 1999). Additionally, the defense that property was stolen, damaged, used or disarranged by persons gaining entry with the key provided has been found insufficient. See Valencia, Park Lake, supra. Even the claim that the owner keeps national defense secrets unsecured in his unit has been rejected. Emerald Seas Condo. Ass n, Inc., et al. v. Harvan, et al., Arb Case Nos and , Summary Final Order (July 31, 1997). Based upon the foregoing, it is ORDERED: 1. On or before 5:00 p.m. on July 1, 2001, Respondent shall clean his unit thoroughly and remove unnecessary items, and provide access to the Association to confirm such cleaning and removal has been completed satisfactorily or provide to the Association on or before July 1, 2011, a fully executed contract with a cleaning service to perform the cleaning and removal. 2. If Respondent fails to comply with the immediately preceding Paragraph 1, then the Association may hire a cleaning service at a reasonable cost to remove unnecessary items and store them and clean Respondent s unit on a monthly basis for a maximum period of one year, with storage and cleaning costs to be paid by Respondent. 3. As of the date of this Summary Final Order, the Association is authorized to inspect Respondent s unit once every 45 days during ordinary business hours for a maximum period of one year. 4. All of the Affirmative Defenses Respondent raised in the Answer to the petition are without merit. 7

8 DONE AND ORDERED this 16 th day of June, 2011, at Tallahassee, Leon County, Florida. Glenn Lang, Arbitrator Department of Business and Professional Regulation Arbitration Section 1940 North Monroe Street Tallahassee, Florida Telephone: (850) Facsimile: (850) Trial de novo and Attorney s Fees This decision shall be binding on the parties unless a complaint for trial de novo is filed in accordance with section , Florida Statutes. As provided by section , Florida Statutes, the prevailing party in this proceeding is entitled to have the other party pay reasonable costs and attorney s fees. Any such request must be filed in accordance with Fla. Admin. Code R. 61B Certificate of Service I hereby certify that a true and correct copy of the foregoing final order has been sent by U.S. Mail to the following persons on this 16 th day of June 2011: Jason R. Himshoot, Esq. Becker & Poliakoff, P.A Carissa Commerce Court Suite 200 Fort Myers, FL Fax: Counsel for Petitioner Michelle E. Berthiaume, Esq. James Ermacora, Esq. Berthiaume & Associates, P.A Fourth Street Fort Myers, FL Fax: Counsel for Respondent Glenn Lang, Arbitrator 8